SZFJN v Minister for Immigration

Case •

[2005] FMCA 1864

•

7 December 2005

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFJN v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1864

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – Applicant a citizen of India claiming a fear of persecution because of his political opinion – credibility – claim that Refugee Review Tribunal lacked jurisdiction.

PRACTICE & PROCEDURE – Application – amendment of application – refusal of leave to file further Amended Application – affidavit – refusal of leave to file affidavit in court on day of hearing – directions – directions made on the First Court Date for the filing of Amended Application and affidavits are mandatory, not advisory.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.475A

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
Liu v The Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCAFC 340

Applicant: SZFJN
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 7 of 2005
Delivered on: 7 December 2005
Delivered at: Sydney
Hearing date: 6 December 2005
Judgment of: Scarlett FM

REPRESENTATION

Counsel for the Applicant: Mr Kumar
Counsel for the Respondent: Mr Reilly
Solicitors for the Respondent: Sparke Helmore

ORDERS

  1. Leave to join Refugee Review Tribunal as a Respondent.

  2. The Refugee Review Tribunal is joined as Second Respondent to the Application.

  3. The Application is dismissed.

  4. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,500.00.

  5. I allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 7 of 2005

SZFJN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for a review of a decision of the Refugee Review Tribunal. The decision was made on 18th November 2004 after a hearing that took place on 14th September 2004. The Refugee Review Tribunal handed down its decision on 9th December 2004. 

  2. The decision of the Tribunal was to affirm the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs made on 27th May 2002 not to grant a protection visa to the Applicant.

Background

  1. The Applicant is a citizen of India who arrived in Australia on 28th January 2002. On 5th February 2002 he applied for a protection (class XA) visa, but this was refused on 27th May. On 28th July 2002 the Applicant sought a review of that decision by the Refugee Review Tribunal.

  2. The Applicant attended a hearing of the Tribunal on 14th September 2004. He said that he had been a member of the Congress Party in India and he used to deliver speeches on behalf of the party. He told the Tribunal that he had been assaulted two or three times by people whose names he did not know but were obviously opposed to the Congress Party.

  3. The Applicant said that he had begun to receive threats by way of letters sent to his house. Those letters told him to stop working for the Congress Party or he would be killed.  He believed that they were from militants in the Khalistan Group. 

  4. The Tribunal put to the Applicant that if indeed he feared harm from people he could relocate elsewhere in India. He was young and could relocate away from his town to a place where his background was not known.  The Applicant replied that he did not have a chance to do that because the people who had threatened to kill him would find him. He said they had links everywhere in India. I refer to page 131 of the Court book.

  5. The Tribunal sent a Section 424A notice to the Applicant dated 12th October 2004. The Applicant replied to it on 8th November 2004.

The Refugee Review Tribunal’s decision

  1. The Tribunal made its decision on 18th November and handed the decision down on 9th December 2004. The Tribunal was satisfied that the Applicant was a citizen of India.

  2. The Tribunal noted that the Applicant's membership of the Congress Party and his role in the party were fundamental to his claims. The Tribunal did not believe the Applicant's claims in this regard saying at page 139 of the Court book:

    The Tribunal is not satisfied on the basis of all the evidence that the Applicant was a high profile member and campaigner for the Congress Party as he has claimed. Indeed the Tribunal is not satisfied that the Applicant was an ordinary member of the Congress Party. The Tribunal is satisfied that the Applicant is neither credible (n)or reliable. His evidence was internally inconsistent and contrary to independent country information.

  3. The Tribunal gave extensive reasons for those findings about credibility. The Tribunal found that there was no convention related reason why the Applicant could not return to India and could not accept that the Applicant had suffered any convention related harm.  The Tribunal affirmed the decision not to grant a protection visa.

The Application and the Amended Applications

  1. The Applicant filed his application on 4th January 2005. On 17th January 2005 a Registrar listed the application for Final Hearing at 2:15pm on 6th December 2005 and made directions for filing an Amended Application and any affidavits by 4th April 2005. The directions require the Applicant to file and serve Written Submissions and a List of Authorities 14 days before the hearing. 

  2. The Applicant filed an Amended Application on 1st April 2005, within the time specified by the Registrar's directions.

  3. The Applicant has since sought legal advice. Mr Kumar of counsel appeared for the Applicant on a direct brief basis.  He prepared written submissions which were filed the day before the hearing.  By that time the Minister's legal advisors had filed their submissions which they were required to do 7 days before the hearing. 

  4. On the day of the hearing the Applicant's counsel sought leave to file a further Amended Application and an affidavit by the Applicant. The Minister's counsel object and I refused that leave. The Applicant's counsel explained that he had only been briefed on the previous Friday, two working days before the hearing.

  5. The fact that an applicant only sees fits to instruct a lawyer to appear for him two days before the hearing is not a reason for the Court to ignore the directions made on the First Court Date. The Applicant has known since 17th January that the Court would hear his application on 6th December.  He has had over 10 months to make his arrangements for representation.  I do not see how any lawyer can be expected to prepare an applicant's case properly for a Final Hearing with so little warning. 

  6. In this case the Applicant did not brief his counsel to appear until the time for filing any affidavit and for filing a written Outline of Submissions had expired. Counsel for the Minister complained that it is hard to prepare a submission in answer to what the Applicant's lawyer may put if the Applicant's submission has not been filed in time.

  7. I have taken the decision to consider the submissions filed by the Applicant's counsel even though they are out of time. They were at least filed the day before the hearing and it was just not possible for counsel to have prepared them much earlier than he did having been instructed so late.

  8. I am not prepared to take such a generous view of the affidavit or the Further Amended Application. I have read the affidavit and in any event it appears to do nothing more than traverse the factual findings made by the Tribunal.  There should be no need for an applicant to file a further application of the hearing.

  9. The Applicant has been at liberty in the community and has had ample time to make arrangements with the lawyer of his choice.  It is unfair to the Respondent to seek to file a document that could alter the very basis of the case at such late notice. Applicants must realise that the directions made on the First Court Date are mandatory not advisory.

  10. There are no special circumstances that would warrant departing from those directions. Lengthy and unwarranted delay by an applicant in obtaining legal representation will not amount to special circumstances.

  11. The Applicant can rely on his Amended Application filed on 1st April 2005.  In that document the Applicant seeks the following relief.

    a)A declaration that the decision of the RRT is invalid and contrary to law;

    b)An order setting aside that decision;

    c)An order that the Tribunal give further consideration according to law to all matters to which the decision relates subject to such directions as the Court thinks fit;

    d)An injunction restraining the Respondent Minister from removing the Applicant from Australia until the determination of the proceedings;

    e)An order that the Applicant be allowed to work full-time in Australia until the decision of the Court;

    f)Costs; and

    g)Such other order as the Court thinks fit.

  12. I should make it clear that the Court in conducting a judicial review of the Tribunal's decision has no jurisdiction to make an order permitting the Applicant to work in Australia. The Applicant relies on the following grounds:

    i)that the Tribunal did not observe procedures that were required by the Migration Act or the Migration regulations in connection with the making; and

    ii)that the Tribunal did not have jurisdiction to make the decision.

  13. The particulars of ground 1 can be summarised as follows. First, that the Tribunal member did not consider the facts of the case. Second, that the Tribunal did not act according to natural justice on the merits of the case. Third, that the Tribunal member did not consider the materials and documents provided by the Applicant. Fourth, that the Tribunal did not adopt the proper legal procedure or follow the guidelines and rules while deciding the case. Fifth, there was no evidence of other material to justify the Tribunal's decision and finally that the Applicant did not breach any visa conditions or any Australian law and there is no criminal record.  The Applicant is a law abiding citizen and a highly respected person in his community.

  14. Of those particulars it is clear that the first and the last are no more than a traversing of the factual findings and constitute no more than a merits review. As far as natural justice is concerned, there are no particulars provided in the application and a denial of natural justice is a matter that must be clearly pleaded and specifically proved.  I am not satisfied that any denial of natural justice appears.

  15. The claim that the Tribunal member did not consider the materials and documents provided by the Applicant to my mind is not borne out by the Tribunal's findings. The claim that the Tribunal did not adopt the proper legal procedure or follow the guidelines and rules while deciding the case is a little bit difficult to comprehend. Any guidelines would be advisory and the Tribunal is not obliged to act in the way that a Court would act.  It is an inquisitorial body and proceedings before it are inquisitorial and not adversarial.

  16. The Tribunal does not require specific evidence to justify its decision not to grant an application. It is the Applicant who must provide evidence upon which the Tribunal can be satisfied that it should grant the application.

  17. I have considered the submission, the Written Outline of Submissions prepared in great detail by Mr Kumar of counsel.  It is a tribute to Mr Kumar's hard work that these submissions were prepared at such short notice.  I will refer to these in order. First of all, as far as aspects of the evidence going to jurisdiction are concerned, there is a submission that the tribunal either misconstrued or failed to construe the evidence going to jurisdiction.  The documents submitted speak for themselves.

  18. The Applicant submitted that the Tribunal failed to consider those documents or construe that evidence but opted to rely on country information.  I am not satisfied that an error has been demonstrated but the Tribunal as long as it considers material is at liberty to prefer one set of material to another. It is put that the Tribunal has failed to apply the tests set out in Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

  19. The submission of the Applicant is that the Tribunal has not given any consideration to the fact that some of the events maybe true. That the Tribunal has not considered the “What if I am wrong?” test and has thereby erred in the application of the real chance test.  In my view that is not borne out.  The Tribunal rejected the Applicant's claim on the basis of his credibility and the findings in respect of credibility are matters of fact par excellence, and I refer Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]. So long as the Tribunal's credibility findings are open to it no error is demonstrated in finding such a conclusion and I refer to Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 558-559.

  20. It was also put that the Tribunal had simply rejected the Applicant's claim on the basis of whether or not events may have happened. The situation is as I said that the major reason for rejection of the Applicant's case is on the basis of the Applicant's credibility and that is a matter that the Court will not overturn.

  21. I have previously referred to the submission of the denial, that there was a denial of natural justice. The submission goes that there was either a denial of natural justice or procedural unfairness in not properly addressing the various documents that form the key part of the Applicant's claim.  In my view that is not a procedure that is required specifically and there is no evidence in any event that the Tribunal did not consider those documents. The fact that it did not specifically analyse each one and put that analysis to the Applicant for comment does not to my mind constitute a jurisdictional error.

  22. I am not satisfied that the Tribunal has failed to consider relevant considerations and taken irrelevant matters into account.  I am certainly mindful of the decision of Liu v The Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCAFC 340 that taking an irrelevant matter into account can constitute jurisdictional error but in my view the Tribunal's decision does not show a taking an irrelevant matter into account or a failure to consider relevant material.

  23. I am mindful of the fact that the Applicant says that the Tribunal adopted an unduly narrow view of political or imputed political opinion and thereby erred in law. To my mind that is a rather sophisticated perhaps attempt at cavilling in a factual finding but a cavilling at a factual finding it is if it comes within the realm of merits review in my view because as long as a narrow view of political or imputed political opinion is one that is open to the Tribunal on the evidence, taking a narrow view rather than the wide view is still a matter for the Tribunal as the fact finding body.

  24. It was also submitted that the Tribunal had used country information to arrive at whether there was a change of persecution or not and that the Tribunal should have considered the reasonableness of relocating and has failed to do so. 

  25. With respect, in my view the Tribunal did consider such material even though the Tribunal was not satisfied as to the credibility of the Applicant's evidence. In the passage to which I previously referred at page 131 of the Court book the Tribunal recounted that it had put to the Applicant that if indeed he feared harm from people he could relocate elsewhere in India.  He was young and could relocate away from his town to a place where his background was not known. The Applicant denied that.

  26. The Applicant said that he did not have a chance to relocate because the people who had threatened to kill him would find him because they had links everywhere in India.  In my view, the Tribunal has considered that material but this all gets down to the fact that in the long run the tribunal was not satisfied as to the credibility of the applicant's evidence.  That is a matter for the Tribunal.  I find there is no jurisdictional error. The application will be dismissed.

  27. This is a matter where costs would normally follow the event and there is nothing that would impel me away from that finding and indeed it has not been submitted that I should. It is put to me that the costs sought in the amount of $5,800.00 is higher than would reasonably be allowed bearing in mind the amount of work that the Respondent's solicitors were required to do.

  28. It may well be that those costs are a little bit on the high side.  In my view the range would extend up to, including today, $5,500.00 and I am prepared to allow costs in that figure.  I am also mindful of the fact that the Applicant belatedly briefed counsel to appear and the Applicant will have his own costs to meet and indeed the Applicant is fortunate that a busy barrister was available to take his case at short notice, and applied his mind with such a degree of expertise to do his best to prepare the Applicant's case in the minimal time that the Applicant had left him to do it.

  29. In all the circumstances I am of a view that I should allow the Applicant six months to pay the Respondent's costs

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  15 December 2005

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